Hamllton v Duncan

[2010] NSWDC 90

CITATION:	Hamllton v Duncan [2010] NSWDC 90
HEARING DATE(S):	22 -24 March, and 22 April 2010
JUDGMENT DATE:	26 May 2010
JURISDICTION:	Civil
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	TORTS - tripping at residential premises - "not insignificant" risk - whether risk calls for precautions to be taken - obvious risk or concealed danger - liability of occupier - contributory negligence
LEGISLATION CITED:	Civil Liability Act 2002 ss 5B, 5R and 15B
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 Department of Housing and Works v Smith [No 2] [2010] WASCA 25 Guides Australia Inc v McMartin [2006] NSWCA 20 Jaenke v Hinton (Supreme Court of Queensland, Court of Appeal, 3 November 1995) Jandson Pty Ltd v Welsh [2008] NSWCA 317 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 Vairy v Wyong Shire Council [2005] HCA 62.
PARTIES:	Markos HAMLLTON Kaine DUNCAN Natalie DUNCAN
FILE NUMBER(S):	05/09 (Nowra)
COUNSEL:	Mr A Stone of Counsel for the Plaintiff Mr R W Seton SC for the Defendants
SOLICITORS:	John McGuire and Associates for the Plaintiff Curwoods Lawyers for the Defendants

1 The plaintiff worked for a hardware shop as a casual delivery driver. On 23 February 2006, he delivered a truckload of timber to 107 Basin View Parade, Basin View, where the defendants were constructing a substantial extension to their home. Ms Dobson, a co-worker, accompanied the plaintiff. She drove a second truck to the premises. The plaintiff and Ms Dobson parked their trucks on the grass at the front of the premises. As the plaintiff was walking around the back of his truck, his left foot entered a hole in the ground and he fell, sustaining a significant left ankle injury. The hole was 9 cm deep. It had a diameter of 35 to 40 cm. Grass growing from the hole was darker than the immediately surrounding grass, which was mottled. The accident site is depicted in Exhibit C, photographs that were taken on the day of the accident. The plaintiff sued the defendants, claiming that they breached their duty of care as occupiers.

2

Issues

1.Whether the hole posed a "not insignificant" risk (s 5B (1) (b) Civil Liability Act 2002).
2. Whether the hole was an obvious risk or a concealed danger. Whether "in the circumstances, a reasonable person in (the defendants’) position would have taken (precautions)" against the risk (s5B (1) (c) of the Act).
3. Contributory negligence.
4. Non-economic loss.
5. Past and future economic loss.
6. Past and future domestic assistance.
7. Entitlement to compensation on a “Sullivan v Gordon claim”.

3 The defendants accepted that, as home owners/ occupiers, they owed a duty of care to the plaintiff.

The Risk

4 Section 5B of the Act sets out the following general principles in relation to breach of the duty of care:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant , and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm. " (emphasis added)

5 The defendants conceded that there was a foreseeable risk that a person would put a foot in the hole, lose balance and sustain injury.

6 Ms Dobson was an impressive witness. Her evidence was not really contested and I accept it. In a statement dated 31 January 2008 (Exhibit 2), Ms Dobson stated that, some minutes before the accident, the plaintiff pointed to the area of the hole and warned her "There is a bit of a hole there". At that stage, she observed:

"21. The hole to me appeared to be like a divot with grass growing over the top. It was not something noticeably deep. To me it appeared like a tree or shrub had been pulled out and this had left a divot in which grass had grown over." (emphasis added)

7 Immediately after the accident, Ms Dobson inspected the hole. At that stage, she observed that it measured about 9 cm in depth and 35 - 40 cm in diameter. (The defendants concede a diameter of 40 cm.) In evidence, Ms Dobson described the hole as "roughly circular" in shape. The side of the hole was "not a sharp edge, it rolled". When she placed a stick in the hole "it felt like the bottom of the hole was flat". About a week later, Ms Dobson's father, Mr Ford, saw the hole, which he recalled as being 30 to 40 cm in diameter. It was large enough to accommodate his size 8 boot.

8 On the basis of the evidence of Ms Dobson and Mr Ford, Exhibit C and other, uncontested evidence, it is clear that the hole measured approximately 35 to 40 cm in diameter and 9 cm in depth. There was grass growing from the hole to the level of the surrounding mown grass. The grass in the hole was darker than much of the surrounding grass, which was somewhat mottled in appearance. The hole did not have a sharp lip or edge, but nor was the hole a gentle undulation or depression. I accept the evidence of Ms Dobson that, on close examination, it had the appearance of a hole caused by the removal of a tree or shrub. The male defendant asserted that, although he had mown the grass regularly, he had not noticed the hole. However, given its dimensions and the fact that it had been there for some time (grass was growing from it), the hole must have been apparent to someone who had mown the grass regularly. The hole was located at the front of the property. Other than the driveway, there was no path to the residence. The hole was located within three metres of the side of the driveway. Usually, it was located within a temporary cyclone fence that the defendants had erected during construction. It was close to a section of the fence that they often removed for the purpose of permitting delivery access. Consequently, it was likely that persons delivering building materials would traverse the area where the hole was located.

Was the Risk "Not Insignificant"?

9 In submission, it was suggested that a "not insignificant risk of harm" meant a risk that was not "trifling". In my view, the expression "not insignificant" suggests a level of risk that is more than " not trifling". Nevertheless, I find that, in this case, the risk was "not insignificant".

10 The defendants lead evidence that, as far as they were aware, no-one had fallen in the hole before or since the plaintiff’s accident. The lack of reported injuries is relevant to an assessment of the risk but is far from determinative: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20, Jandson Pty Ltd v Welsh [2008] NSWCA 317.

11 The location of the hole (close to the driveway and close to the route by which building materials were often delivered), the dimensions of the hole (it was large enough for someone's foot to become caught in it) and the fact that the dimensions of the hole were not readily visible (the grass growing from the hole was green but it blended into its motley surrounds) were such that there was a significant risk that someone would step into the hole and sustain injury.

Whether a Reasonable Person would have Taken Precautions

12 The plaintiff submitted that the defendants should have taken the precaution of filling the hole with soil.

13 In determining whether a reasonable person would have taken precautions against a risk, the Court is to have regard to all the circumstances, including the matters set out in s5B (2). The matter is to be considered prospectively, not with the wisdom of hindsight: Vairy v Wyong Shire Council [2005] HCA 62.

14 In relation to the s 5B(2) circumstances, the probability of harm was reasonably low as there was limited pedestrian traffic in the vicinity. The likely seriousness of harm was low to moderate. A trip and fall on grass does not usually cause severe injury. However, the burden of taking precautions was very low. The "burden" included the burden of inspecting the whole front lawn for the purpose of identifying significant holes or depressions, a process that would have taken little time and involved almost no expense.

15 I accept the defendants’ submission that, in determining whether a reasonable person would have taken precautions, a relevant circumstance is the fact that the defendants were ordinary householders. Most domestic premises are full of hazards and ordinary householders cannot be expected to remove all foreseeable hazards.

16 The parties agreed that it was important for the Court to determine whether the hole should be characterised as a "concealed danger" or an "obvious risk". The obviousness of a risk and the remoteness of the likelihood that visitors will fail to observe and avoid it are often factors relevant to a judgement about what is a reasonable response: Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 per McHugh J at [37].

17 In Jaenke v Hinton (Supreme Court of Queensland, Court of Appeal, 3 November 1995) the respondent, a milk vendor, had tripped when she stood on a garden hose lying on the neatly mown front lawn of a residence. The Court of Appeal determined that, although the risk of injury was foreseeable, it did not require a response from a reasonable person.

18 In Guides Australia Inc v McMartin [2006] NSWCA 20, the Court of Appeal upheld a decision in favour of a woman who had caught her foot in a depression as she was walking across a lawn en route to a club function in a hall. The depression was three or four inches wide and about the same depth. It was some metres in length. There was grass growing in the depression. The woman asserted that she had been looking where she was going but had not seen the depression. The depression was obvious to an observer who was close to the depression and was looking out for it. The trial judge considered that the risk was not "obvious".

19 In Department of Housing and Works v Smith[No 2] [2010] WASCA 25, a resident of seniors accommodation units had been hurrying across a lawn when she tripped in a depression that was about an inch deep and at least 24 cm in diameter. It did not have "clean cut edges". The trial judge found that the depression was "not insignificant" and should have been remedied by the property owner. In allowing an appeal, the Court of Appeal observed that, as the depression was not disguised and was not a "trap", the only available conclusion was that the resident was hurrying and did not take sufficient care to observe where she was going. The Court determined that a reasonable person in the owner’s position would have done nothing by way of remedying a slight depression in the lawn, "the existence of which was obvious to a person choosing to look where they were going when they were crossing the lawn" ([35], emphasis added).

20 In this case, a vigilant pedestrian would have observed the area of green grass growing from the hole and would have identified the hole as a possible risk. Indeed, the plaintiff did observe that there was "a bit of a hole". However, as the depth of the hole was not obvious, the extent of the risk was not obvious.

21 Having regard to the defendants’ status as ordinary householders, the s 5B (2) circumstances and other relevant circumstances including the extent to which the risk was concealed, I am persuaded that a reasonable person in the defendants’ situation would have taken the quick and easy precaution of inspecting the area and filling in significant depressions.

Contributory Negligence

22 The defendants argued that the plaintiff was guilty of contributory negligence.

23 Section 5R of the Act provides:

“(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.”

24 The issue is whether the plaintiff contributed to his loss by failing to take reasonable care in the circumstances of the case. The plaintiff’s conduct is to be tested against that of a reasonable person in the plaintiff’s position, and the duty owed by the defendants is a factor to be weighed in making that determination: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 per McColl JA at [16].

25 The plaintiff did not dispute Ms Dobson's evidence that, a matter of minutes before the accident, he had pointed to the hole and warned her "There is a bit of a hole there". Thereafter, the plaintiff became distracted, forgot his own advice and failed to keep a proper lookout. A reasonable person in the plaintiff’s situation would have maintained a lookout.

26 The extent of contributory negligence is to be assessed by considering the relative culpability of the parties and the causal potency of their actions. In this case, the defendants were ordinary householders who were responsible for making their property reasonably safe for visitors. They failed to address a not insignificant risk that could have been obviated by simple means. However, their culpability cannot be compared to that of an employer, who owes a high duty of care and must anticipate casual inadvertence on the part of employees. On the other hand, the plaintiff had identified a possible risk (although he could not have known the extent of the risk) but failed to keep a proper lookout.

27 I assess contributory negligence at 30%.

Non-Economic Loss

28 The plaintiff was not a reliable witness. He admitted forging medical certificates and providing documents to his Workers Compensation insurer in which he falsely claimed that he was in Australia in order to receive insurance benefits. I approach his assertions of disability with some scepticism.

29 At the date of the accident, the plaintiff was 45 years old.

30 In the accident, the plaintiff sustained ligament injury and chondral damage to the talus in his left ankle. Initially, he was treated as an outpatient at Shoalhaven Hospital. His local doctor then applied a half cast and referred him to Dr Cassetto, an orthopaedic specialist. The plaintiff wore the cast and used crutches for three or four weeks. In mid-March, he commenced physiotherapy but pain and swelling persisted.

31 The plaintiff has undergone two surgical procedures. In August 2006, he underwent a left ankle arthroscopy and open lateral ligamentous reconstruction for "post-traumatic left ankle instability". Following discharge, he was to wear a full cast for two weeks and a short leg weight-bearing cast for a further four weeks. There was an infection and the cast had to be removed and reapplied.

32 In October 2006, the plaintiff participated in a 12 week "work smart program". At the conclusion of the program, his walking tolerance had improved to 750 m and he was able to walk slowly without limping. He was able to unload the week's shopping and mow his lawn. However, he continued to complain of significant ankle pain.

33 In May 2007, Dr Cassetto reported that there was minimal swelling and the ankle joint was stable. There was a reasonable range of motion in the ankle with some tenderness around the surgical site. In September 2007, the plaintiff reported discomfort and instability in the left ankle and knee. Dr Cassetto asked him to try another course of physiotherapy.

34 In January 2008, Dr Cassetto reported that the plaintiff had made "great gains" with left ankle function through physiotherapy but was suffering from increasing pain and associated instability in the left knee. An MRI scan showed degenerative change in the medial and lateral menisci with no tearing. In Dr Cassetto’s view, the symptoms represented otherwise underlying asymptomatic osteoarthritis, that had been rendered symptomatic by altered gait mechanics associated with the left ankle injury. Dr Searle and other doctors reported that the accident probably caused a tear of a meniscus in the left knee. However, as Dr Cassetto was the treating doctor and he did not diagnose a tear to the meniscus, I do not accept that the accident resulted in a tear to the plaintiff’s meniscus.

35 In September 2008, the plaintiff underwent left knee arthroscopic partial lateral meniscectomy and medial femoral chondroplasty. On discharge, the plaintiff resumed physiotherapy. In evidence, the plaintiff said that his left knee was significantly better after the surgery.

36 Dr Searle anticipated a gradual increase in symptoms associated with degenerative changes over time. In May 2009, he stated that the plaintiff will "certainly need another arthroscopy of each joint, and each of these would cost $7,000 in today's terms". In May 2009, Dr Davis anticipated that the plaintiff would need a total knee replacement within the next 10 years at a likely cost of $28,000. There was a possibility that he would require an ankle arthrodesis at a cost of $11,000.

37 The plaintiff gave evidence that the disabilities associated with the accident caused depression and disappointment. This psychological state was the result of pain, limited capacity to undertake domestic responsibilities, and inability to work and financially support his family. He referred to diminished interest in sexual relations and arguments with his wife because he was unable to undertake household chores and assist with the care of the couple’s seriously disabled daughter. There were periods of separation, when he moved to live in a caravan park. In November 2009, Dr Lee, a psychiatrist who provided a medico legal report to the defendants, reported that the plaintiff appeared to be exaggerating in the context of the medico legal assessment. Dr Lee stated that the injury may have caused a period of depression but there was no current depression.

38 I accept that the plaintiff continues to suffer from some pain and instability in the ankle, although he may have exaggerated the level of those disabilities. Dr Holman, an orthopaedic surgeon, provided a medico legal report to the plaintiff's workers compensation insurer. I accept the plaintiff's submission that Dr Holman must be regarded as a reasonably independent reporter. He accepted that, as a result of the accident, the plaintiff continued to suffer from significant disability in the left ankle and left knee joints.

39 I assess the plaintiff’s non-economic loss as 30% of a most extreme case.

Past and Future Economic Loss

40 The plaintiff was educated in New Zealand to the equivalent of Year 11 standard. In New Zealand, he generally worked as a delivery driver or tow truck driver. In 2005, the plaintiff, his wife and their disabled daughter moved from New Zealand to Australia. They took up residence on the NSW South Coast, close to his parents-in-law, as they were available to assist with the plaintiff's daughter. In November 2005, the plaintiff obtained employment as a casual delivery driver with the employer for whom he was working at the time of the accident. At the time of the accident, the plaintiff was earning $650 net per week.

41 In relation to the claim for future economic loss, s 13 of the Act applies. I find that, but for the injury, the plaintiff's most likely future circumstances would have been to continue working as a driver. However, there are limited work opportunities on the South Coast (see Rehab Co reports, part of Exhibit A) and the plaintiff had no job security; he was working as a casual employee at the date of the accident. Had there been no accident, the plaintiff may well have experienced significant periods of unemployment. I find that, on average, he would have earned $500 net per week. The plaintiff claimed that he would have worked until 67 years of age. However, having regard to the physical nature of driving work, I am not satisfied that the plaintiff would have worked beyond 65 years of age.

42 I accept that the plaintiff was effectively disabled from work for at least twelve months. Thereafter, his capacity for work fluctuated, but he did have some capacity for work. One of the reasons that he did not obtain employment was because of limited employment opportunities on the South Coast.

43 On 22 September 2008, the plaintiff secured part-time clerical and light driving work with a removalist company. He earned $325 net per week over a period of three months. Unfortunately, he was required to drive a manual vehicle, which caused difficulty with his left knee and ankle.

44 I accept the opinion of Dr Holman that the plaintiff is unfit for his pre-injury employment. He is fit for driving an automatic car or light truck for up to 30 minutes at a time and would then require a short break to stretch and exercise his left leg. He is unfit to carry weights of more than 5 kg, and could only carry such weights over a short distance. He is unfit to stand for more than 10 minutes at a time, unfit to walk more than 100 metres, unfit for going up and down stairs, unfit to work on ladders and unfit for any job that requires squatting. I note that the plaintiff’s osteoarthritis may have an impact on his future capacity to undertake work that is not of a sedentary nature.

45 The plaintiff has an interest in information technology and has limited computer skills. He is currently studying psychology, although he is struggling with some of the coursework. In the course of other employment, he has undertaken some office work (such as giving quotations) but he has never undertaken a full-time office position. He could undertake clerical duties, subject to the restrictions referred to above. There may be some driver positions that he could fulfil, at least on a part-time basis. However, having regard to the restrictions on his activity to which Dr Holman referred, he would be incapable of undertaking most full-time driver positions. I assess his ongoing loss of earnings as $300 net pw.

Past and Future Sullivan v Gordon

46 Section 15B(2) of the Act provides:

“Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:
(a) … the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and
(b) … and
(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:
(i) for at least 6 hours per week, and
(ii) for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. “

47 The plaintiff claims the loss of capacity to care for his seriously disabled daughter, who was born in February 2004. She suffers from "floppy baby syndrome" and requires a high level of attention. Following the accident, he was unable to play on the floor with her and was unable to pick her up and carry her.

48 Prior to 2009, there was a period during which the plaintiff left the matrimonial home and lived by himself in a caravan park for three to six months. In early 2009, the plaintiff again left the matrimonial home and lived in a caravan park. In August 2009, he returned to New Zealand, where he is in a new relationship. He would like to have contact with his daughter.

49 Despite the absence of clear evidence as to the time that the plaintiff spent with his daughter and the nature of the services that he provided, there is no doubt that he was a devoted father and would have cared for his daughter for significant periods of time before the accident. Consequently, I confidently infer that there is a reasonable expectation that, but for the injury, the plaintiff would have cared for his daughter for at the least six hours a week for a period of lease six consecutive months following the accident.

50 After the accident, the plaintiff was himself significantly disabled and was unable to care for a seriously disabled child. The plaintiff's daughter was only two years old the date of the accident. I infer that she has required and continues to require a high level of care.

51 Pursuant to section 15B, the plaintiff claims seven hours per week over 2.5 years. Allowing for the fact that the plaintiff lived in a caravan park for up to 12 months of the period February 2006 - August 2009, and assuming the minimum level of care that one would expect of a devoted father, the claim is reasonable. However, as the plaintiff now resides in New Zealand and there is no firm evidence that the plaintiff is likely to have significant ongoing contact with his daughter, I will award only a small cushion for future care.

Past Voluntary Domestic Assistance, Future Domestic Assistance

52 The plaintiff gave evidence that, prior to the accident, he assisted with heavy domestic chores such as vacuuming, sweeping and cleaning bathrooms. He undertook outdoor chores such as mowing the lawn and putting out the rubbish. After the accident, the burden of domestic chores fell on his wife. I accept that, prior to the accident, the plaintiff would have contributed to domestic chores in the usual way. After the accident, his disabilities precluded any substantial contribution to heavy household work, both indoors and out.

53 Currently, he lives in a one-bedroom apartment by himself. He employs a cleaner once a week at a cost of $60. There is some prospect that he will live with his new partner. In that case, the couple will no doubt share the responsibility for domestic chores.

54 In relation to past voluntary domestic assistance, I will allow 6 months at two hours a day and thereafter at three hours per week.

55 I consider it reasonable to allow the plaintiff $60 per week for future paid domestic assistance.

Future Medical Expenses

56 In relation to future treatment expenses, the plaintiff will require occasional attendances on his general practitioner and specialists. From time to time, he will need to purchase pain-killing medication. He may need physiotherapy. He may require knee or ankle surgery (although medical opinion differs on the nature of any such surgery).

Damages

1	Non-economic loss (30% of a most extreme case)	$ 109,000
2	Past treatment expenses (agreed)	$ 82,300
3	Future treatment expenses (cushion)	$ 25,000
4	Past economic loss $650 x 52 weeks = $33,800 $300 x 3 years 3 months = $50,700	$ 84,500
5	Fox v Wood (agreed)	$ 3,677
6	Past loss of superannuation (11% of net loss)	$ 9,295
7	Future economic loss ($300 net pw until 65yo, 15.5 years multiplier 567, less 15%)	$ 144,585
8	Future loss of superannuation (11% of net loss)	$ 15,904
9	Past voluntary domestic assistance a. 6 months x 2 hours pd x $22 = $8,008 b. 2.5 years x 3 hours pw x $22 = $8,580	$ 16,588
10	Future paid domestic assistance ($60 pw x 35.75 y, multiplier 880)	$ 52,800
11	Past Sullivan v Gordon (2.5 years x 7 h pw x $22)	$ 20,020
12	Future Sullivan v Gordon (cushion)	$ 5,000
Total	$ 568,669
Less 30% contributory negligence	$ 398,068

57 I award damages in the sum of $ 398,068.